io2 



NORTH CAROLINA. 



prisoners to the civil authorities. In regard 

 to the second branch of the question, that the 

 power of the county be called out if necessary 

 to aid the sheriff in taking the petitioners by 

 force out of the hands of Kirk, the Court was 

 of opinion that " the power of the county, or 

 posse comitatus, means the men of the county in 

 which the writ is to ~be executed; in this in- 

 stance, Caswell and that county are declared 

 to be in a state of insurrection. Shall insur- 

 gents be called out by the person who is to 

 execute the writ, to join in conflict with the 

 military forces of the State ? " The Chief Jus- 

 tice, asserting that the whole physical power 

 of the State was by the constitution under 

 the control of the Governor, that the judiciary 

 had " only a moral power," and that "by the 

 theory of the constitution there can be no con- 

 flict between these two branches of the gov- 

 ernment," concluded by saying: "The writ 

 will bo directed to the marshal of the Supreme 

 Court, with instructions to exhibit it and a 

 copy of this opinion to his Excellency the Gov- 

 ernor. If he orders the petitioner to be de- 

 livered to the marshal, well ; if not, following 

 the example of Chief-Justice Taney, in Merri- 

 man's case (see ANNUAL CYCLOPAEDIA for the 

 year 1861, page 354), I have discharged my 

 duty; the power of the judiciary is exhausted, 

 and the responsibility must rest on the Execu- 

 tive." 



Upon the presentation of this writ by the 

 marshal to the Governor, the latter refused to 

 allow the surrender of the prisoners, saying : 

 " I do not see how I can restore the civil au- 

 thority until I suppress the insurrection, which 

 your Honor declares I have the power to do ; 

 and I do not see how I can surrender the 

 insurgents to the civil authority until that 

 authority is restored. It would be mockery in 

 me to declare that the civil authority was un- 

 able to protect the citizens against the insur- 

 gents, and then turn the insurgents over to the 

 civil authority." 



As the State courts now seemed to be pow- 

 erless in the matter, the friends of the peti- 

 tioners sought relief in the United States 

 Court, and obtained from Judge Brooks of the 

 District Court a writ of habeas corpus com- 

 manding Kirk to produce before him the bod- 

 ies of the prisoners. To avoid any conflict 

 between the State and Federal authorities, Gov- 

 ernor Holden telegraphed to President Grant 

 as follows, for instructions : 



' STATE OF N. CAROLINA, EXECUTIVE DEPARTMENT, ) 

 KALEIGH, August 7, 1870. ) 

 To the President of the United, States. 



SIB : The Chief Justice of the Supreme Court of 

 this State, sustained by his Associate Justices, has 

 decided that I have a right to declare counties in a 

 state of insurrection and to arrest and hold all sus- 

 pected persons in such counties. This I have done. 



But the District Judge, Brooks, relying on the 

 fourteenth amendment and the act of Congress of 

 1867, page 385, chapter 28, lias issued a writ of habeas 

 corpus, commanding the officer, Kirk, to produce 

 before him the bodies of certain prisoners detained 

 by my order. 



I deny his right tlius to interfere with the local 

 laws in murder cases. I hold these persons under 

 our State laws and under the decision of our Supreme 

 Court Judges who have jurisdiction of the whole 

 matter, and it is not known to Judge Brooks in what 

 manner or by what tribunal the prisoners will be ex- 

 amined and tried. 



The officer will be directed to reply to the writ that 

 he holds the prisoners under my order and that he 

 refuses to obey the writ. If the marshal shall then 

 call on the posse comitatus there may be a conflict ; 

 but if he should call first on the Federal troops it will 

 be for you to say whether the troops shall be used to 

 take the prisoners out of my hands. 



It is my purpose to detain the prisoners unless the 

 Army of the United States, under your orders, shall 

 demand them. 



An early answer is respectfully requested. 



W. W. HOLDEN, Governor. 



In reply to these inquiries, Attorney-General 

 Ackerman, to whom the question was submit- 

 ted by the President, held that the United 

 States District Judge could not " refuse to issue 

 the writ, if the petition makes out a case for 

 it under the habeas corpus act of 1867, 14 Stat- 

 utes, 385," and advised that the "State au- 

 thorities yield to the United States Judiciary," 

 adding, that "if the return be uncontroverted, 

 or the facts appearing on proof to the judge, 

 after a denial by the petitioner, show the ar- 

 rests to have been made under lawful State ( 

 authority, he will remand the prisoners." 



In accordance with this opinion, Governor 

 Holden ordered Colonel Kirk to obey the writs 

 issued by Chief-Justice Pearson, in order that 

 the cases might be tried in the State Court. 

 The proceedings in the United States Court 

 were therefore discontinued. Subsequently, 

 on the 19th of August, the prisoners appeared 

 before Chief-Justice Pearson, and, on probable 

 cause being shown of their complicity in certain 

 outrages charged against them, were recog- 

 nized to appear at the Superior Court of their 

 respective counties. 



The disorders and excitement that had been 

 prevalent for so many months now began to 

 subside, and comparative tranquillity was re- 

 stored among the people. Hence early in No- 

 vember the Governor issued the following 

 proclamation : 



EXECUTIVE DEPARTMENT, KALEIGH, Nov. 10, 1870. 



Be it known, that the proclamation issued from 

 this department, dated March 7 : 1870, declaring the 

 county of Alamance in a state of insurrection, and the 

 proclamation issued from this department, dated 

 July 8, 1870, declaring the county of Caswell in a 

 state of insurrection, are hereby revoked, and it is 

 hereby declared that said proclamations shall not 

 have further force or effect. 



I take this occasion, as Chief Magistrate of North 

 Carolina, to express my gratification at the peace and 

 good order now prevailing in the counties of Ala- 

 mance and Caswell, and generally throughout the 

 State. I trust that peace and good order may con- 

 tinue ; that partisan rancor and bitterness may abate ; 

 that our people of all classes and conditions may cul- 

 tivate harmony and good-will among themselves; 

 and that the whole people of the State, without re- 

 spect to party, may unite fraternally and cordially to 

 build up North Carolina, and to elevate her to the 

 proud eminence which she once occupied as a member 

 of the American Union. 



